The Propriety of Libby's Commutation

The most well-argued defense of the Libby commutation was made yesterday by David B.Rivkin, Jr. formerly of the White House Counsel's Office and Department of Justice Official. I urge you to read it all. For those who wonder about the wisdom of commuting a sentence after a jury found guilt, Mr. Rivkin nails it:

This brings me to my last point, which has been trumpeted by the critics of the President's commutation of Mr. Libby's sentence: why wasn't he exonerated by the jury,since juries are often swayed by arguments that a particular defendant was treated overly harshly by the government or was made a scapegoat for the transgressions of others. Indeed, Mr. Libby's lawyers have tried to deploy some arguments along these lines and, yet, did not succeed. In my view, the reason for this has to do with how Mr. Fitzgerald chose to present his case to the jury. He did so ably, and without violating his ethical obligations; yet, in my view, it was done in a way that was fundamentally unfair and sealed Mr. Libby's fate with the jury.

Jurors are human beings and as human beings want to understand a defendant's motivations. As a result, the overall narrative provided by the prosecutor, the context if you will, is extremely important. In Mr. Libby's case, Mr. Fitzgerald presented the jury the following damning narrative - there was a nefarious effort in the White House to destroy Joe Wilson's reputation and even to punish him, by allegedly hurting the career of his wife Valerie Plame; these activities were part and parcel of the broader effort to sell the Iraq war to the American people. While I believe this narrative to be fundamentally false, it proved successful with the jury. The fact that the critics of the President's decision to commute Mr. Libby's sentence invariably invoke the broad narrative of the alleged White House Iraq war - related nefarious activities, underscores how unfair and politicized this whole exercise has been.

To summarize, since, in my opinion, Mr. Libby's prosecution led to a fundamentally unjust result, the use of the pardon power to remedy the injustice, if only partially at this time, was an entirely correct and proper exercise of the President's constitutional powers

The most well-argued defense of the Libby commutation was made yesterday by David B.Rivkin, Jr. formerly of the White House Counsel's Office and Department of Justice Official. I urge you to read it all. For those who wonder about the wisdom of commuting a sentence after a jury found guilt, Mr. Rivkin nails it:

This brings me to my last point, which has been trumpeted by the critics of the President's commutation of Mr. Libby's sentence: why wasn't he exonerated by the jury,since juries are often swayed by arguments that a particular defendant was treated overly harshly by the government or was made a scapegoat for the transgressions of others. Indeed, Mr. Libby's lawyers have tried to deploy some arguments along these lines and, yet, did not succeed. In my view, the reason for this has to do with how Mr. Fitzgerald chose to present his case to the jury. He did so ably, and without violating his ethical obligations; yet, in my view, it was done in a way that was fundamentally unfair and sealed Mr. Libby's fate with the jury.

Jurors are human beings and as human beings want to understand a defendant's motivations. As a result, the overall narrative provided by the prosecutor, the context if you will, is extremely important. In Mr. Libby's case, Mr. Fitzgerald presented the jury the following damning narrative - there was a nefarious effort in the White House to destroy Joe Wilson's reputation and even to punish him, by allegedly hurting the career of his wife Valerie Plame; these activities were part and parcel of the broader effort to sell the Iraq war to the American people. While I believe this narrative to be fundamentally false, it proved successful with the jury. The fact that the critics of the President's decision to commute Mr. Libby's sentence invariably invoke the broad narrative of the alleged White House Iraq war - related nefarious activities, underscores how unfair and politicized this whole exercise has been.

To summarize, since, in my opinion, Mr. Libby's prosecution led to a fundamentally unjust result, the use of the pardon power to remedy the injustice, if only partially at this time, was an entirely correct and proper exercise of the President's constitutional powers